5.14.2012

Question Asking

To ask a question of another person is normally considered a fairly neutral, everyday activity. The inquirer seeks to obtain information or learn about something. Unless you are trying to be dubious, sarcastic, or playful, you don’t intend to embarrass or cast doubt on the person’s answer. That is, if you are not one of the current justices of the Supreme Court.

After the Court heard arguments on the constitutionally of the new Health Care Law, the Times carried out an analysis of the questions asked by each of the justices. Consider the central issue the Court will be asked to rule on: Is the individual health mandate constitutional?

The liberal-conservative relationship for the number of questions asked to the lawyer arguing No was precisely the opposite, with the liberal judges asking far more questions than the conservatives.

The article reports that Chief Justice Roberts once wrote, “…the secret to successful advocacy is simply to get the Court to ask your opponent more questions.” He based this claim on a study of 10 Supreme Court cases by a second year law student, Sarah Levien Schullman who reported, “the party that gets the most questions is likely to lose.”

Roberts confirmed her results by expanding his own study to 30 cases and similarly found that the “most-asked-question-rule” predicted the loser 86% of the time. A much larger study of 200,000 cases also reported the same outcome. The lead author wrote, “The more attention justices pay to a side, the more likely that side is to lose.”

If these findings are a reliable predictor of the Court’s judgments in general and on this case in particular, the Court is likely to rule the Affordable Care Act unconstitutional sometime next month.

This prediction is also supported by the fact that Anthony Kennedy, the so-called “swing justice” asked more questions (6) to the attorney arguing for the constitutionality of the law than the one challenging it (3).

It is obvious that nothing we say or do is free from the biases inherent in the effects of previous experiences or the inferential errors that cloud our judgments. At the same time one might expect that the members of the highest court of the land to be fully aware of these biases and take pains to minimize their influence.

In light of the large differences revealed in the research on judicial decision-making among Supreme Court justices, there isn’t much evidence for their claim of bias free questioning.

I'm afraid that crossing your fingers is pretty irrational here. What amazes me is why on earth the administration (as well as scholars like the esteemed Laurence Tribe) seemed to think they'd win in the court because legal precedent was on their side, and they naively believed that the justices would rise above their political prejudices!

Even Daniel Kahneman who has done so much research on errors of reasoning confesses he finds it impossible to rise above his biases. So one should not be surprised that Harvard Law graduates can't either.

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I am often led to write about ideas that I read about in books, essays, and on the Web. In this blog I will make note of some of these ideas, the questions they pose, and how, in some instances, they have influenced me. I will also comment on some of my research interests and the many questions that puzzle me.